Eql17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 4)

This case concerned an application for judicial review of a decision by the Authority, which affirmed a previous decision to refuse the applicant a protection visa. The applicant, a Shia Muslim from Iraq, claimed to fear harm due to his religion and the general security situation in his home country, as well as specific threats from the Al-Sadar Militia. The Authority had considered various country information reports, including a 2017 DFAT Report, and the applicant's evidence, ultimately finding that the applicant was not a credible witness and that there was "less than a remote chance" he would suffer harm.

The primary legal issue before the court was whether the Authority had misunderstood and misapplied the "real chance" test when assessing the applicant's claims of fearing harm. Specifically, the applicant contended that the Authority's conclusion that there was "less than a remote chance" of harm contradicted its own findings that Shias in Baghdad faced a "moderate risk of violence" and those in other Shia areas faced a "lower" risk. The applicant argued that the "real chance" test, as established in High Court authority, was not an onerous test and could be satisfied by a 10% chance.

Driver J considered the evidence presented, including affidavits and country information. The Authority had found numerous inconsistencies in the applicant's evidence, leading it to doubt his credibility. Despite these credibility concerns, the Authority had accepted certain aspects of the applicant's claims, such as his awareness of threats to drivers by Al-Sadar and the possibility that he had transported Iraqi military personnel. However, the Authority rejected key claims, including being asked to join Al-Sadar and receiving a personal death threat, finding them inconsistent and vague. The Authority's ultimate finding of "less than a remote chance" of harm was based on its synthesis of the applicant's evidence and the country information, which suggested that targeted violence against Shias was largely aimed at destabilising the government rather than specific individuals, and that ordinary civilians faced a lower risk. The court noted that the "real chance" test requires more than a mere possibility but less than a probability.